Certified for Partial Publication.
In this matter, a school playground has become a neighborhood battleground. This case arises from objections by appellants Eureka Citizens for Responsible Government (Eureka Citizens),
I. FACTS AND PROCEDURAL HISTORY
The Church has occupied the property at 2039 `E' Street in Eureka for over 50 years. For the past 26 years, the Church has operated the Redwood Christian School on its property. The School, which is limited to 70 students in grades K-8, is located within a predominantly single family residential district,
During the summer months of 2002, School volunteers, unaware of the preexisting use restrictions, constructed the outdoor playground which is the focus of this dispute in an area of approximately 63 feet by 42 feet (2,646 sq. ft.) on a corner of the School property at the north property line.
Appellants Andrew and Ida Nash formerly occupied the residence immediately to the north of the school. Appellants Nash and Emery and other neighbors raised objections, and in July, 2003 the City gave notice to the School that the playground was unauthorized, and use of the play area was suspended.
An initial study
That decision was appealed to the city council by neighboring property owner and appellant James Emery, individually and as president of the prairie addition neighborhood association (Association).
A public hearing on the appeal was held before the city council in December 2003. After hearing arguments from the Project opponents and proponents, the city council continued the hearing and ordered preparation of an environmental impact report (EIR), focusing in particular on noise impact issues raised by the opponents.
After circulation and public comment, a final EIR (final EIR) was prepared and the continued public hearing was set for March 15, 2005.
On April 13, 2005, appellants filed a petition for writ of mandate in the Humboldt Superior Court seeking, inter alia, to set aside the certification of the EIR and the approvals based on that certification.
Appellants' arguments focus on two areas. First, they assert that the City failed to comply with the mandates of CEQA. Second, they commend that the City acted in derogation of the own land use and zoning ordinances in approving the amended CUP and granting a variance from the zoning ordinances.
A. Standard of Review
B. Scope of the Administrative Record
Appellants moved in the trial court to "correct" or augment the administrative record, submitting 47 additional documents which the City had declined to include in its certified record. These documents included items of correspondence to or from various City officials, only some of which relate to the applications for the Project, and some of which appellants assert are relevant to "ongoing land use violations" by the applicant. The City objected that the proffered materials were neither presented to, nor considered by, the city council in its deliberations or decision. The motion was denied. Appellants submit the same materials here.
As respondents correctly observe, appellants fail to provide a transcript of the trial court proceedings on the motion, or any order reflecting the ruling below. Failure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellants. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502, 93 Cal.Rptr.2d 97 (Hernandez).) On the state of the record provided, we find no error in denial of the motion.
The content of administrative records in CEQA proceedings is governed by Public Resources, Code section 21167.6, subdivision (e).
Extra-record evidence may be considered in quasi-judicial administrative mandamus proceedings only if the evidence was unavailable at the time of the hearing "in the exercise of reasonable diligence" or if improperly excluded from the record. (Code Civ. Proc, § 1094.5, subd. (e)
C. CEQA Compliance
Whenever the approval of a project with potential environmental impact is at issue, the statute and regulations "`have established a three-tiered process to ensure that public agencies inform their decisions
The first tier is jurisdictional, requiring that an agency conduct a preliminary review in Order to determine whether CEQA applies to a proposed activity. (Guidelines, §§ 15060, 15061.) CEQA applies to a "project" unless the project is exempt. (See Pub, Resources Code, §§ 21065, 21080.) If the project is not exempt, the agency must proceed to the second tier and conduct an initial study. (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 792, 124 Cal.Rptr.2d 731; see Guidelines, § 15063.) If the project does not qualify for a negative declaration, the third step in the process is to prepare a full EIR. (Pub. Resources Code, §§ 21100, 21151; Guidelines, §§ 15063, subd. (b)(1), 15080; San Lorenzo Valley, supra, 139 Cal.App.4th at pp. 1372-1374, 44 Cal.Rptr.3d 128; Gentry, supra, 36 Cal.App.4th at p. 1372, 43 Cal.Rptr.2d 170.) The EIR is the "heart of CEQA" (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, 26 Cal.Rptr.2d 231, 864 P.2d 502 (Laurel Heights II.).)
In this case, the City found that conflicts ing noise studies submitted by the applicant and the opponents raised a fair argument of significant environmental noise impacts, and a full EIR was prepared. (See Gentry, supra, 36 Cal.App.4th at p. 1400, 43 Cal.Rptr.2d 170 [EIR required if the record supports a "fair argument" of significant environmental impact].) Appellants argue that the EIR was "flawed and inadequate." They assert that the draft EIR was improperly prepared by the applicant, and "rubber stamped" by the City so that the final EIR failed to represent the independent judgment of the City. They further allege that the draft EIR as circulated did not properly describe the scope of the Project. They contend that the City's findings based on the final EIR failed to adequately address noise impacts of the project, that the Project is incompatible with the "historic" character of the neighborhood, that aesthetic and safety impacts were ignored, and that the City failed to adequately respond to public comments.
1) Applicant's Preparation of the Draft EIR
Appellants first complain that* the initial draft of the EIR was prepared by counsel for the applicants, and was therefore "biased and legally inadequate:" We find nothing improper in the applicant's preparation of the draft document.
When an EIR is required, the lead agency is responsible for preparing it, but rather than preparing it using its own staff, the agency may enlist the initial drafting and analytical skills of an applicant's consultant (Pub. Resources Code, §§ 21082.1, subd. (a), 21100, subd. (a); Guidelines, § 15084, subd. (d)(3)), so long as the agency applies its "independent review and judgment to the work product before adopting and utilizing it." (Friends of La Vina v. County of Los Angeles (1991) 232 Gal.App.3d 1446, 1452-1455, 284 Cal.Rptr. 171 (La Vina); Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 220, 86 Cal.Rptr.2d 209; Guidelines, § 15084, subd. (e).) This methodology is common in California, and the Guidelines affirmatively endorse preparation of a draft EIR in the manner used in this case. (La Vina, supra, at p. 1454, 284 Cal.Rptr. 171.) The "preparation" requirements of
The Eureka community development director, Kenneth Hamblin, assured the city council that City staff had reviewed the draft EIR and had made modifications to it. Here the City also retained a consultant, Environmental Science Associates (ESA), to conduct a comprehensive peer review of the draft EIR. ESA prepared a written report with comments and proposed changes which were sent to the applicant for incorporation in the draft EIR.
The city council made an express finding that City staff were directly involved in the review and preparation of the draft EIR and final EIR, that staff reviewed and commented on the administrative drafts prior to circulation, and that the EIR at all times represented the independent judgment and analysis of the City.
Substantial evidence supports the finding that the City conducted a detailed review and critique of the applicant's submission, and that it applied its "independent review and judgment to the work product" as it was required to do.
2) The EIR urns Adequate
a. Claims of prior illegality
Appellants argue that the Project description, as reflected in the EIR, was improperly "skew[ed]" by failure to consider the nature and consequences of what appellants deemed prior "illegal" activities of the applicant, including historic zoning violations and alleged code violations in the construction of the playground.
As appellants acknowledge, however, preparation of an EIR is not generally the appropriate forum for determining the nature and consequences of prior conduct of a project applicant, and environmental impacts should be examined in light of the environment as it exists when a project is approved. (Guidelines, § 15125, subd. (a); Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1452-1453, 91 Cal.Rptr.2d 322 (Riverwatch); Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1280,119 Cal.Rptr.2d 402.) Appellants argue that Riverwatch is distinguishable in that the lead agency conducting the environmental review in Riverwatch was a different agency than that responsible for enforcement issues. They contend that since the City is also responsible for enforcement
The Guidelines set forth the requirements for a Project description. (Guidelines, § 15124.)
b. Content of the EIR
Appellants challenge the sufficiency of the EIR and the City's findings on noise impact, aesthetic, and safety issues. They also challenge the sufficiency of the City's response to public comments.
i.) Noise Impacts
It is evident from the record that the noise impacts were the principal focus of the debate over the Project. The noise impacts were analyzed in the City staff report, in the applicant's SHN study, and in the Winzler &. Kelly study commissioned by appellants. Appellants complain that the SHN study was flawed and "technically incompetent," failed to comport with the acoustical analysis standards contained in the City's general plan policy 7.G.4, and provides no factual basis for the City's ultimate findings that the noise levels generated by the Project would not have a significant environmental impact.
Disagreements among experts does not make an EIR inadequate. (Guidelines, § 15151; Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390, 133 Cal.Rptr.2d 718 [When experts in a subject area dispute the conclusions reached by other experts whose studies were used in drafting the EIR, the EIR need only summarize the
Appellants correctly cite Citizens' Com. To Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1171, 44 Cal.Rptr.2d 288 for the proposition that speculation, unsubstantiated opinion, or evidence that is clearly inaccurate or erroneous, do not constitute substantial evidence. In that case, however, no evidentiary support was provided to support a fair argument that an EIR was required in the first instance. While appellants here contest the methodology used and the conclusions reached in the SHN study, the ESA peer review found that SHN used "an industry standard approach" and that the measured noise levels "accurately characterize the contribution of the children playing on the playground to the noise in the vicinity of the Redwood Christian School playground."
While appellants challenge the methodology used by SHN and the validity of the conclusions reached, our Supreme Court has cautioned reviewing courts against performing our own scientific critiques of environmental studies, a task for which we have neither resources nor scientific expertise. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393, 253 Cal.Rptr. 426, 764 P.2d 278 (Laurel Heights /).) Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document. The issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the findings. (Id. at p. 409, 253 Cal.Rptr. 426, 764 P.2d 278.) In this instance, the City staff conducted its own analysis of noise impacts in its initial study, and the City found that both the SHN and Winzler & Kelly engineering firms were "well respected and qualified to prepare such studies."
The SHN study concluded that the Project would result in a less than 3 decibel increase above ambient noise levels in the area. The City acknowledged the disagreement among the experts on the issue of noise. After consideration of the conflicting evidence, the City found that the playground's overall noise levels would not create a significant impact (CEQA Finding 2.2.2), and that, based on cited evidence from the EIR, the noise levels generated by the Project would "not significantly exceed ambient noise levels" generated by other residential activities and traffic noise (CEQA Findings 2.2.3, 220.127.116.11). The Project is located on a "Minor Arterial" street, and the City determined that transportation generated noise from traffic on `E' Street was, and would continue to be, the greatest contributor to the ambient noise level in the area. To insure that overall noise levels would not significantly exceed ambient noise, mitigation measures, including landscape screening were required, and the City further provided for review of the Project after one year. The matter relied upon by the City for its findings included "fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact," which constitute substantial evidence to support the findings. (Pub. Resources Code, § 21080, subd. (e).)
Appellants also insist that the SHN study was defective in failure to conform to the acoustical study guidelines of the
A finding of consistency requires only that the proposed project be compatible with the objectives, policies, general land uses, and programs specified in the applicable plan. (Gov.Code, § 66473.5.) In its initial study of September 18, 2003, addressing Project noise impacts, City staff notes that the goal of the general plan noise standards is: to protect residential neighborhoods from "excessive noise," and that the Project would not generate excessive noise beyond `that created by ambient conditions. In its finding of fact, the City expressly found that the noise generated by children using the playground "will not exceed the noise standards for non-transportation noise as described in the adopted general plan."
Courts accord great deference to a local governmental agency's determination of consistency with its own general plan, recognizing that "the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity." (Save our Peninsula, supra, 87 Cal App.4th at p. 142, 104 Cal.Rptr.2d 326, citing City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021, 162 Cal.Rptr. 224.) Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan's policies when applying them, and it has broad discretion to construe its policies in light of the plan's purposes; a reviewing court's role is simply to decide whether the public officials considered the applicable policies and the extent to which the proposed project conforms with those policies. (Napa Citizens for Honest Government v. Napa County Bd of Supervisors (2001) 91 Cal.App.4th 342, 386, 110 Cal.Rptr.2d 579.) The record confirms that the City considered the Project's conformity to the policies of the general plan.
ii.) Historical Resource Impact
Appellants assert that the City failed to analyze the impact of the Project on the "historic character" of the neighborhood. The Guidelines provide that a project that may cause a substantial adverse change in the significance of an historical resource is subject to CEQA. (Guidelines, § 15064.5, subd. (b).) A "historical resource" is one listed in, or eligible for listing in the California register of historical resources; a resource included in a local register of historical resources (unless the preponderance of evidence demonstrates that it is not historically or culturally significant); any object, building, structure, site, area, place, record, or manuscript which a lead agency determines to be historically significant, if the lead agency's determination is supported by substantial evidence. (Guidelines, § 15064.5, subd. (a).)
A "substantial adverse change" in the significance of an historical resource is defined as "physical demolition, destruction, relocation, or alteration of the resource or its immediate surroundings such that the significance of an historical resource would be materially impaired." (Guidelines, § 15064.5, subd. (b)(1), italics added.) The
Appellants contend that "Experts in historical preservation confirmed that the historic district surrounding the site has been materially impaired" by installation of the play structure, citing a study by Stillman & Associates, commissioned by appellants and incorporated in the EIR. That study, however, offers no such conclusion. While discussing the presence of about 53 historically significant structures in the 30 block general neighborhood of the Project which are identified in a local historic register, it posits no damage to, or impairment of, any of them. Certainly it does not, and could not, suggest that the Project contemplated any demolition of, or material alteration of, the physical characteristics of the identified historically significant structures. Contrary to appellants' argument, the only conclusion expressed in the study was that the prairie addition neighborhood was "culturally significant," and that "The size, bright color, and lack of setbacks ... create a neighborhood intrusion."
Nothing in the study indicates that the neighborhood, as opposed to individual structures within it, meets the Guidelines definition for a "historical resource," and it was never identified as such by the City as the lead agency. As the City noted in its response to the comments to the draft EIR, the evidence cited by appellants "simply does not create the possibility that the Project will in some way make any structure less historic...." Appellants acknowledge the absence of case authority for the premise they assert here, and they fail to show any inadequacy of the EIR in this regard.
iii.) Aesthetic Impacts
Appellants contend that the playground will not be aesthetically pleasing and will degrade the existing visual character of the area, thus having a significant adverse aesthetic effect on the environment. They assert that the EIR failed to address this issue.
Aesthetic issues are properly studied in an EIR to assess the impacts of a project. (Pub. Resources Code, § 21100, subd. (d); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-940, 21 Cal.Rptr.3d 791.) However, a lead agency has the discretion to determine whether to classify an impact described in an EIR as "significant," depending on the nature of the area affected. (Guidelines, § 15064, subd. (b); Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-493, 14 Cal.Rptr.3d 308 (Mira Mar); National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1357, 84 Cal.Rptr.2d 563.) Despite appellants' reference to the presence of 53 historically significant structures in the general neighborhood of the Project, nothing was presented in the record that establishes an aesthetic impact on any of them, that any "scenic vistas" were impaired, or that this Project is located in a "particularly sensitive" context.
"In exercising its discretion, a lead agency must necessarily make a policy decision in distinguishing between substantial and insubstantial adverse environmental impacts
Here, the City, sin the staff initial study, used the checklist and evaluation of environmental impacts provided in appendix G to the Guidelines. In response to question 1(c) dealing with aesthetics (Would the project "[substantially degrade the existing visual character or quality of the site and its, surroundings?"), the City found "less than significant impact," noting that determining the aesthetic impact of a project is a "qualitative judgment not a set of quantifiable parameters." The City staff further found that the multicolored playground equipment "retains a new appearance, its height and bulk are not extraordinary, and the area where the playground is located is clean and orderly," and that the Project "will not result in adverse aesthetic impacts."
In response to comments to the draft EIR, submitted by appellants' counsel, that the playground structure was "enormous and garish" and "wholly inappropriate for this site," the City correctly Observed that the CEQA issue of aesthetics is not the judging of the individual beauty of the Project, but rather physical elements of the preexisting environment the Project may significantly impact. The City again found that the comment and the material submitted by counsel did not demonstrate the possibility of a significant adverse environmental impact.
The possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project. (See Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 584-593, 18 Cal.Rptr.3d 814.) "Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons." (Mira Mar, supra, 119 Cal. App.4th at p. 492, 14 Cal.Rptr.3d 308.)
Here the City determined that the Project's aesthetic impacts would be insignificant, and EIR contained, as required, statements addressing the reasons for that conclusion. (Guidelines, § 15128.) The EIR therefore adequately dealt with this issue.
iv.) Safety Issues
Appellants contend that there are a multitude of safety violations on the playground which represent "substantial adverse effects on human beings, either directly or indirectly"—one of the questions posed by the Guidelines checklist.
We agree with the City's response to these contentions. "The safety of the playground is an important issue, however, it is an issue that is important for reasons other than CEQA. CEQA studies significant, physical impacts on the environment and this is not such an issue...." (See
Even if this issue were one properly raised under CEQA, we find substantial evidence to support the City's determination of the absence of any significant environmental impact. Three safety studies were submitted and incorporated in the EIR. Two studies critical of the safety of the installation were submitted by appellants. While vociferously criticized by appellants, the third, prepared by North State Playgrounds and submitted by the applicant, was also conducted by a certified playground safety inspector, and noted no deficiencies. The City also concluded that the playground "conforms with applicable laws and regulations." The study submitted by the applicant was sufficiently credible as part of the total evidence to support the City's findings. (See Laurel Heights I, supra, 47 Cal.3d at p. 409, 253 Cal.Rptr. 426, 764 P.2d 278.)
v.) Response to Public Comments
Appellants also contest the adequacy of the City's responses to public comments, alleging that the City gave only "cursory responses" to virtually all of the comments. We again disagree.
Responses to comments need not be exhaustive; they need only demonstrate a "good faith, reasoned analysis." (Guidelines, § 15088, subd. (c); Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 937, 45 Cal.Rptr.3d 102 (Gilroy Citizens).) As noted above, the overwhelming majority of the comments received by the City favored the Project. The opposition comments were generated largely by appellants and appellants' counsel, and raised the same issues presented here. The sufficiency of the agency's responses to comments on the draft EIR turns upon the detail required in the responses, and where a general comment is made, a general response is sufficient. (Gilroy Citizens, supra, at p. 937, 45 Cal.Rptr.3d 102; Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 878, 134 Cal.Rptr.2d 322.) Satisfactory responses to comments may also be provided by reference to the EIR itself. (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 686, 188 Cal.Rptr. 233.)
We find nothing inadequate in the responses provided by the City, and no showing by appellants that any alleged inadequacy in the responses was prejudicial.
Our role here is not to decide whether the City acted wisely or unwisely, but simply to determine whether the EIR contained sufficient information about a proposed project, the site and surrounding area and the projected environmental impacts arising as a result of the proposed project or activity to allow for an informed decision. (San Joaquin Raptor/Wildlife
D. Compliance with City Land Use Regulations
The judgment is affirmed.
SIMONS, Acting P.J., and GEMELLO, J., concur.